Newly Proposed Post – Rapanos Guidance:
An Expansion of EPA and the Corps’
Jurisdiction over Wetlands
GIEC
General Membership Annual Meeting 2011
March 24, 2011
Atlanta, Georgia
Beverlee E. Silva
Alston & Bird LLP
404-881-4625
beverlee.silva@alston.com
Rapanos v. United States
547 U.S. 715 (2006)*
*Revisited, yet again
Is it a “Water of the United States”
Rapanos sought to determine the scope of Clean Water Act’s
jurisdiction:
Regulates “Navigable Waters”
“navigable waters” are “waters of the United States, including the
territorial seas . . .” 33 U.S.C. § 1362(7)
What is a “water of the United States?”
The Disharmonious Supremes
Scalia (4) – Plurality opinion
Kennedy (1) – Significant Nexus opinion
Stevens (4) – Dissenting opinion
Plurality Decision (Scalia)
 Corps’ expansive “land is waters” approach goes beyond
CWA
 Waters are ONLY those relatively permanent, standing or
continuously flowing bodies of water forming geographic
features that are described in ordinary parlance as streams,
oceans, rivers, and lakes.
 Waters are NOT channels through which water flows
intermittently or ephemerally or channels that periodically
provide drainage for rainfall.
Scalia Two-Part Test
1. (Adjacent) Relatively permanent body of water connected
to traditional interstate navigable water, and
2. (Connected) Continuous surface connection with that
water, making it difficult to determine where the water
ends and the wetland begins.
Kennedy Opinion
 Requires significant nexus between the wetlands and navigable waters
(traditional)
 Significant nexus is met if the wetlands, either alone or in combination
with similarly situated lands in the region, significantly affect the
chemistry, physical and biological integrity of navigable waters
 Adjacent wetlands meet the test, but otherwise case-by-case
determination
EPA/Corp Attempt to Interpret
 EPA and the Army Corps of Engineers have made two attempts to issue
“guidance” about what the Rapanos decision means in practice.
 Issued Post-Rapanos guidance on June 5, 2007 and December 3, 2008
 2007 Guidance was not much help because it failed to adequately
define “significant nexus.”
 2008 Guidance is currently in effect.
Existing Guidance
How does it categorize “waters of the United States?”
Definitely Jurisdictional
The agencies will assert jurisdiction over the following waters:
 Traditional navigable waters
 Wetlands adjacent to traditional navigable waters
 Non-navigable tributaries of traditional navigable waters that are relatively
permanent where the tributaries typically flow year-round or have continuous
flow at least seasonally (e.g., typically three months)
 Wetlands that directly abut such tributaries
Maybe Jurisdictional
The agencies will decide jurisdiction over the following waters based on a factspecific analysis to determine whether they have a significant nexus with a
traditional navigable water:
 Non-navigable tributaries that are not relatively permanent
 Wetlands adjacent to non-navigable tributaries that are not relatively
permanent
 Wetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary
Not Jurisdictional
The agencies will generally not assert jurisdiction over the following features:
 Swales or erosional features (e.g., gullies, small washes characterized
by low volume, infrequent, or short duration flow
 Ditches (including roadside ditches) excavated wholly in and draining
only uplands and that do not carry a relatively permanent flow of water
The agencies will apply the significant nexus standard as follows:
 A significant nexus analysis will assess the flow characteristics and
functions of the tributary itself and the functions performed by all
wetlands adjacent to the tributary to determine if they significantly
affect the chemical, physical and biological integrity of downstream
traditional navigable waters.
 Significant nexus includes consideration of hydrologic and ecologic
factors.
How Has the Existing Guidance Been Received?
 Not popular with anybody
 Democrats in Congress proposed new legislation to
significantly increase definition of jurisdictional waters,
but it went nowhere
 Administration decided to try again
2010 Draft Guidance
Attempt # 3
Status of New Guidance
 The draft 2010 Guidance was sent in February 2011, to the White
House Office of Management and Budget (OMB) for review and has
not yet been officially released.
 Under Executive Order 12866, OMB has up to 90 days to review the
Guidance and suggest changes. EPA and the Corps have said they will
provide an opportunity for public comment, although it will not be the
full notice and comment rulemaking afforded agency regulations under
the Administrative Procedures Act (“APA”).
What is the Expected Impact?
 The proposed guidance is a significant departure from the Existing
Guidance and relies more explicitly on the view taken by Justice
Kennedy in the Supreme Court’s Rapanos decision
 Many in industry are interpreting it to significantly expand federal
jurisdiction under the Clean Water Act over millions of acres of
property.
What’s New?
“This guidance reflects the relevant science and responds to the agencies’
experience implementing previous guidance documents.”
“. . . alleviates the need to develop extensive administrative records for
certain jurisdictional determinations that caused delays and added costs
to both federal agencies and the regulated community.”
The draft guidance seeks to address limits on the water law’s scope by
offering a new interpretation of the test provided by Kennedy, while
reiterating EPA’s litigation position that regulators can rely on either
the Kennedy test or the Scalia test when determining jurisdiction.
Why?
“The 2008 Rapanos guidance [Attempt #2] reflected a policy choice to
interpret Justice Kennedy’s opinion narrowly, resulting in fewer
waterbodies found to be jurisdictional under the CWA than under a
more faithful interpretation.”
The 2010 Guidance purports to refine the agencies’ interpretation of the
“significant nexus” standard so it is consistent with Kennedy’s opinion
and “the science of aquatic ecosystems.”
Also purports to determine the jurisdictional status of waters not addressed
by earlier guidance (for example, interstate waters).
Still Guidance Not Regulation
Attempt #3 is still just guidance.
It does not have a legally binding effect on EPA, the Corps, or the
regulated community.
“. . . Interested persons are free to raise questions regarding the application
of this guidance to a particular situation. . . .”
NEW REGULATIONS WILL BE PROPOSED FOR 2011 CONSISTENT
WITH THE NEW GUIDANCE
So what’s in the Draft 2010 Guidance?
SUMMARY OF KEY POINTS
Jurisdictional Waters
The Agencies will assert jurisdiction over:

Traditional Navigable Waters

Interstate Waters

Wetlands adjacent to either traditional navigable waters or interstate waters

Non-navigable tributaries to traditional navigable waters that are relatively permanent,
meaning at least seasonal

Wetlands that directly abut relatively permanent waters
Maybe Jurisdictional
The following waters are subject to CWA jurisdiction if a fact-specific analysis
determines they have a “significant nexus” to a traditional navigable water or
interstate waters:
 Tributaries to traditional navigable waters or interstate waters
 Wetlands adjacent to jurisdictional tributaries to traditional navigable
waters or interstate waters
 Waters that fall under the “other waters” category of the regulations.
Not Jurisdictional
The following aquatic areas are generally not subject to Clean Water Act
jurisdiction as waters of the United States:
 Wet areas that are not tributaries or open waters or do not meet the agencies’
regulatory definition of “wetlands”
 Waters excluded from coverage under the CWA by existing regulations
 Waters that lack a “significiant nexus” where one is required for a water to be
subject to CWA jurisdiction
Also Not Jurisdictional
 Artificially irrigated areas that would revert to upland should irrigation
cease
 Artificial lakes or ponds created by excavating and/or diking dry land
and used exclusively for such purposes as stock watering, irrigation,
settling basins, or rice growing
 Artificial reflecting pools or swimming pools created by excavating
and/or diking dry land
Also Not Jurisdictional
 Small ornamental waters created by excavating and/or diking dry land
for primarily aesthetic reasons
 Water-filled depressions created incidental to construction activity
2011 Draft Guidance is Very Robust
Divided into Eight Separate Sections

The first two sections address the fundamental classes of waters subject to Clean Water
Act jurisdiction: traditional navigable waters and interstate waters.

Section 3 provides general guidance relating to Kennedy’s “significant nexus” standard

The next three sections provide guidance on determining whether various types of
waters are subject to CWA jurisdiction, including: Tributaries (Section 4); Adjacent
wetlands (Section 5); and Other waters (Section 6)

Section 7 discusses examples of waters over which the CWA has no jurisdiction

Section 8 provides guidance on the documentation necessary to jurisdictional decisions
Significant Nexus: An Expansive, New 4 Page
Explanation
 “Waters have the requisite nexus if they, either alone, or in combination
with similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of traditional navigable
waters or interstate waters.”
What will the Agencies Look at?
 Significant Nexus Determination
 Are the waters “similarly situated” with other waters of the same regulatory
or resource type?
 Are they in the same watershed, “defined by the area draining into the
nearest traditional navigable water or interstate water”
 If so, there is a significant nexus “if they alone or in combination” they
would have an effect on the chemical, physical, or biological integrity of
traditional navigable waters or interstate waters that is more than
‘speculative or insubstantial”
Hydrologic Connection Not Necessary
 The draft guidance also notes that a “hydrologic connection” is not
necessary to determine jurisdiction under Kennedy’s test because:
“in some cases the lack of hydrologic connection would be a sign of the
water’s function in relationship to the traditional navigable or
jurisdictional water, such as retention of flood waters or pollutants that
would otherwise flow downstream to the traditional navigable or
interstate water”
Expansion of Jurisdictional Wetlands
 Has the potential to assert jurisdiction over wetlands away from traditional
navigable waters, based on the impacts of proposed activity in those wetlands
 “ . . . while it may be difficult to demonstrate that a particular individual
wetland adjacent to a small headwater tributary has a significant nexus to a
traditional navigable water, the destruction of all such adjacent wetlands in a
region could have significant effect on the traditional navigable water and,
thus, in such circumstances the CWA must protect those wetlands in order to
protect the traditional navgiable water,” “The same logic applies to tributaries
and similarly situated other waters.”
Expected Results in the Field
 “The Agencies expect that the number of waters found to be subject to
CWA jurisdiction will increase significantly compared to practices
under [past] guidance.”
 The “scope of waters subject to CWA jurisdiction will still not be as
extensive as it was prior” to the Supreme Court’s action.
Political Fallout

Even though the 2010 Guidance has not yet been released, it is unpopular in several
camps.

Already has stiff opposition from industry groups.

House Republicans have also included language in their spending plan for the
remainder of fiscal year 2011 that blocks EPA from issuing the guidance. Separate
from their attempt to de-fund EPA.

The disagreements will no doubt escalate if the agencies issue regulations this year as
promised.